Closing the Gates of Janus: The pains of parole

Once again, this guest post comes from Kris McPherson.

It’s that time of year again. The parole season ‘tis upon us. As I am serving what is known in Scotland as an extended sentence, I can apply for parole every twelve months until my release date. This year is my eighth and, thankfully, final time applying for early release. Applying for parole normally brings with it a tide of stress and anxiety not only about the entire process itself but also apprehension surrounding daily life upon re-entry into society. The irony about this whole scenario is that never before have I worried or even bothered thinking about these issues. This is because I have never expected parole (except in 2017 where I had so many things stacked in my favour and was still unsuccessful).

In the not so distant past, I saw myself as someone incapable of ‘going straight’. I felt that no matter how hard I tried to convince people I had changed, nobody would believe it. In this way, my philosophy shifted from ‘no quarter!’ to ‘you can’t swim against the tide!’ In those days of pre-academic darkness, the problems that came with ‘going straight’ belonged to others. Coincidentally, prisoner re-entry and employing people with previous convictions featured in the news recently (after I had been reading up on these issues). According to the BBC (2018) report, a new organisation, Release Scotland, consists of companies, charities and government agencies seeking to get those who have previous convictions into meaningful employment. The narrative stated that 75% of businesses in the UK would not consider employing someone who had previously been convicted (BBC, 2018).

Ironically, this article was published on the same day as another news piece that claimed a third of Scottish men have a criminal conviction, according to researchers at the University of Glasgow (Marland, 2018). Does that indicate that 75% of companies in the UK would not even consider employing a third of Scottish men? Wouldn’t it be more financially and socially beneficial for society to employ people leaving prison instead of marginalising them? Isn’t it possible that this marginalisation compounds the likelihood of recidivism? Doesn’t a third of Scottish men constitute a potentially valuable source of labour? Wouldn’t employing this portion of men aid their integration and resettlement back into society?

According to Ager and Strang (2004: 5), an individual can be classified as integrated when they access and benefit from “public outcomes within employment, housing, education, health etc, which are equivalent to those achieved within the wider host communities [and] to confidently engage in that society in a manner consistent with the shared notions of nationhood and citizenship” (cited in Kirkwood and McNeill, 2015: 9). Moreover, Kazemian (2007: 22) points out that “desistance is likely to be maximized when intervention efforts integrate both rehabilitation and reintegration dimensions”. Isn’t it logical to postulate that employing those with criminal records would indicate both ‘rehabilitation and ‘reintegration dimensions’, which, in turn, would ‘maximise desistance?’

Encouragingly, Sir Richard Branson called upon more employers to take on ex-offenders in an interview with UK-wide prison newspaper Inside Time(James, 2016). “People with convictions need the dignity of work”, Sir Richard told the editor, Erwin James. He explained how a training programme in Virgin Trains has culminated in employment for a woman with several previous convictions for violence. In fact, BBC News (2018) cites that Virgin Trains is one of the employers that collaborate with Release Scotland to provide work for those with convictions. Then-Justice Minister Michael Gove also explained how the three main factors that stopped people re-offending are: employment, a secure home and strong family bonds (James, 2016). When an individual with previous convictions has something important to lose (their livelihood), I imagine recidivism is a much less appealing option.

While employment, housing and health apply to all of us, I wonder if education is individually specific? For example, I can construct an essay but couldn’t change a tire on a car. I guess what I am saying is that intelligence comes in many forms. Even though all of the above indicate bureaucratic notions of inclusivity, I wonder where larger society fits into this picture. For this reason, I recently wondered whether Restorative Justice (RJ) could play some role in prisoner re-entry and desistance. In fact, wouldn’t RJ help realise McNeill’s (2014) notions of social rehabilitation, where the individual is fully reintegrated of society and becomes a productive member? Moreover, I feel that McNeill and Schinkel’s (2015) notion of ‘tertiary desistance’ and RJ share interconnecting similarities in as much as absorbing ‘offenders’ back into mainstream society once they have ‘made good’. According to Marshall (1999: 6), the fundamental characteristics of RJ are:

Fully attending to victims needs

Preventing recidivism by re-integrating offenders

Enabling offenders to assume responsibility for their actions

Creating a working community that supports the rehabilitation of offenders

Providing a means of avoiding the escalation of criminal justice measures (cited in Cunneen, 2015: 384).

In this way, we can see that both ‘offenders’ and ‘victims’ are at the centre of this debate. However, the criminal justice process presents itself as a ‘vertical model of justice’ (Yazzie, 1994, cited in Fergusson and Muncie, 2010) where external hierarchies of power are utilised to resolve conflicts between individuals or groups in society. In this way, Yazzie (1994: 29–30) argues, “Parties to a dispute have limited power and control over the process […] When outsiders intervene in a dispute, they impose moral codes upon people who have moral codes of their own. The subjects of adjudication have no power, little or no say about the outcome of a case, and their feelings do not matter” (cited in Fergusson and Muncie, 2010: 74). In fact, Christie (1977) argued that the conflict between individuals and/or groups is their ‘property’; property that is subsequently taken over by the state in its role as ultimate ‘arbitrator’.

One could therefore postulate that conventional, vertical modes of criminal justice form a triangular shape, with the judge at the pinnacle and the ‘offender’ and ‘victim’ at opposite ends of the base. However, ‘horizontal models’ of dispensation in the RJ sphere are more circular in form where “…no person is above the other. A graphic model often used by Indians to portray this thought is a circle. In a circle, there is no right or left, no beginning or end. Every point (or person) on the line on a circle looks to the same center as the focus. A circle is a symbol of Navajo justice because it is perfect, unbroken, and a simile of unity and oneness” (Yazzie, 1994: 29–30, cited in Fergusson and Muncie, 2010).

In this way, shouldn’t an all-inclusive circle represent our own dispute processes in society? “In addition to tangible compensation, restorative justice advocates rebuilding the relationship between the victim and offender. In sharp contrast to the traditional model of justice, restorative justice aims to resolve conflict and restore dialogue between the parties where possible” (Gaudreault, 2005: 6). Personally, I feel that it takes a lotof courage on the part of the ‘victim’ and ‘offender’ to participate in the RJ mediation process.

In fact, I recall watching one of the many TV programmes about the American penal system that showed a face-to-face mediation between a prisoner and victim’s mother. I was surprised by how nervous the prisoner appeared but I was even more amazed when the victim’s mother told the prisoner (who was serving life imprisonment for killing her son) that she had forgiven him. The powerful act of humanity and compassion gave me goose bumps, prompting me to wonder why RJ is non-existent in Scottish prisons. Couldn’t this catalyse desistance? Wouldn’t such meetings between prisoner and victim not only allow the victim to heal but also to allow the prisoner to appreciate the magnitude of his/her actions? British MP Jeremy Wright (2012) commented that “Restorative Justice has the potential to break the destructive pattern of behaviour of those that offend by forcing them to confront the full extent of the emotional and physical damage they have caused to their victims” (cited in MoJ, 2012: 1).

While I feel that ‘forcing [offenders]’ is the wrong terminology to use, he still manages to get his point across. I say this because it is easy to read about your mistakes in a bureaucratic report; I imagine it would be a lot harder to look into the eyes of those who were hurt by your actions, especially if they said “I forgive you!” Therein lies the irony – I find myself secretly yearning to be part of such humanity yet am oddly frightened by it at the same time. Intriguingly, Shapland et al. (2011) state that “…restorative justice conferencing may provide a platform upon which intending desisters can set out, in front of their supporters and victims, that they do take responsibility for the offence, that they wish to change their lives, and that they are sorry for the harm the offence has caused [to victims and supporters]” (cited in Shapland and Bottoms, 2017: 762).

Instead of utilising RJ practices to bridge gaps between prisoners and wider society, individuals in prison appear to be fending for themselves vis-à-vis rehabilitation. According to McNeill and Weaver (2010: 8), “It is not enough to have opportunities, ‘opportunities’ need to be read as opportunities by the offenders themselves”. However, where are those ‘opportunities?’ Is the period of incarceration itself the opportunity? Furthermore, it has been argued that sending people to prison “slows maturation, damages family ties, cements criminal identities and establishes criminal associations and networks” (McNeill and Weaver, 2010: 13). In this way, one could argue that incarceration allows those individuals already criminally disposed to develop and nurture ‘criminal capital’, compounding the likelihood of recidivism (Bayer et al. 2009, cited in Drago and Galbiati, 2012). Shockingly, Labour MP David Lammy (2017) cites the cost of recidivism to the British taxpayer as somewhere between £9.5 and £13 billion per year. Imagine how much social inequality the state could eradicate with that amount of money.

In fact, Lammy (2017) argues that people trying to ‘go straight’ should be allowed to present their case before a court with the ultimate aim of sealing their criminal records if they can convince the court of their transformation. In this way, sealing criminal records of those who have demonstrated change will allow individuals to re-integrate into society instead of “trapping offenders in their past, denying dependents an income, and costing the tax payer money” (Lammy, 2017: 64). Lammy’s (2017) notion comes in response to a law in the state of Massachusetts where an individual’s criminal record can be sealed through judicial process if that person can demonstrate to the court that transformation has been achieved. In fact, couldn’t one argue that the state of Massachusetts will extend ‘judicial rehabilitation’ (McNeill, 2014) to convicted people if they can prove ‘moral’ and ‘psychological rehabilitation’ (McNeill, 2014)? Shouldn’t Scotland/UK follow suit?

According to Shapland and Bottoms (2017), the width of the Rehabilitation of Offenders Act (1974) was extended in 2014 vis-à-vis the possibility of sealing criminal records in England and Wales although it is unclear what this entails. The sad fact is that it is the very existence of individual criminal records that impacts upon the re-entry and, in turn, potential desistance of people leaving prison. Employers can’t be forced or coerced to provide jobs to ex-offenders. Doesn’t this reluctance to provide employment to those with criminal records arguably indicate the apparent belief that ‘rehabilitation is dead?’ In fact, Healy (2016) argues that “…in economic hard times, even those offenders trying to desist are likely to fail because employers will look elsewhere in the pool of unemployed labour” (cited in Shapland and Bottoms, 2017: 762). I hope that Release Scotland will bridge this gap in the Scottish context.

Interestingly, Weaver (2018) cites how “people with convictions appear to be the only group excluded from the Equality Act 2010’s anti-discrimination protections and so one implication might be that people with convictions should be legally recognised as a disadvantaged group entitled to special employment protection”. Doesn’t this only further marginalise people who have been convicted, making desistance from crime appear as a fantasy rather than helping it become a reality? Hopefully the juxtaposition of businesses under the Release Scotland umbrella will go some way to rectifying this anomaly.

As I near my own release, my mind swirls with these issues. I feel as though I am one of the people at the heart of these problems because, like it or not, most (if not all) of them affect my life in some way. Prisoner re-entry affects me because I am about to leave prison and return to society likely within the next year. Restorative justice could theoretically apply although I feel that, in my own case, it should be the victims’ choice whether they feel the process would benefit them. In fact, I am of the view that if those who I have hurt in the past wished to pursue this course of action, then it is my duty to participate whether I want to or not (but that is my personal opinion).

The most applicable issue to my own case, I feel, is desistance. The closer I come to my final parole hearing, the more I think about the big unknown. Will the societal marginalisation and disenfranchisement remain at the prison gates as I exit the institution? Is it possible that I will finally be able to shed my criminal identity in the eyes of the criminal justice apparatus and wider society and, in turn, adopt a freshly constructed academic persona? If the primary purpose of incarceration is ‘rehabilitation’ then I wonder why the parole board think my past outweighs my transformation.

In fact, Weaver et al. (2012: 94) postulate that the “seriousness of the current offence and criminal career are unrelated to parole board decision making. Decisions tend to be made based on current (at the time of the parole application) propensity to change and to reduced criminogenic need”. Personally, I feel that my own situation demonstrates that this is not always the case. My criminogenic need has been reduced through the utilisation of standard risk assessment tools and I have participated in all programmes that were recommended by psychologists in the past. I was recalled to custody in 2011 for two charges of breach of the peace but have been held for seven years (with fourteen months left to serve).

Unfortunately, the parole board has refused to grant my release every year since my recall to custody. I feel that there is nothing more I can do to convince them (or anyone else for that matter) that I am serious about change. However, I think that the much-coveted academic future that potentially awaits me out with these grey walls will render all of the parole rejections insignificant. In other words, I transformed myself in the face of overwhelming adversity and pointlessness while it seemed that the parole function (in my mind, at least) reinforced the negativity of my incarceration. I sometimes wonder if I would have embraced my previous criminal identity had I not met the people who championed me or participated in academic study in prison.

Although many people return to prison, transformation is possible for even those (seemingly) incapable of change. However, I feel that I am simply fortunate that I met the people I did when I did. Maybe transformation was in my life script from day one? Sadly, this may not the case for many of the people who share my current living space. In this way, Travis and Petersilia (2001: 299) ominously state that “No matter what punishment philosophy sends prisoners to prison, no matter how their release is determined, with few exceptions they all come back. It is hard to find a coherent re-entry philosophy in the current state of affairs”.

While I feel that this statement could apply to all of those that have been incarcerated, one could argue that winning the battle within oneself vis-à-vis criminality is the first step towards winning the war that sees ‘offenders’ marginalised and disenfranchised in societies across the globe. In this way, they appear to be held prisoners of their own pasts. I feel that I have won the inner battle that helped deconstruct my criminal identity through higher education. But there is no denying that relapse could occur if I received zero help or support from others. I would like to say that it doesn’t bear thinking about but anything is possible. However, I have my new persona and mentality (and my son) going in my favour, which are undoubtedly protective factors.

Despite the fact that I have fought a mental, emotional and spiritual war within my own heart, mind and soul, I realise that I am still human and, therefore, fallible like everyone else. I realise I have crossed legal, social and moral boundaries in the past. But I want to make it right somehow. Undoubtedly, criminality causes individuals to cross the threshold separating mainstream society from its dark underbelly. In fact, the Russian word for ‘crime’ (prestupleniye) denotes the crossing of a boundary, from one dimension to another. This brings me to my title-related metaphor. In Roman times, there was a spirit called Janus who was a symbol of archways and doorways. In fact, these gates were left open in times of war and closed during periods of peace and tranquillity. I like this metaphor because doorways and archways symbolise the crossing of a threshold, from one dimension to another. My own individual Gates of Janus opened, in my opinion, when my Dad died.